Abortion pill issue will show us what this Supreme Court is really made of

The conflicting federal district court rulings on the continued distribution of mifepristone, a drug that is used to induce abortions, provides the Supreme Court the opportunity to show that it follows the law and not just conservative ideology.

It is the business of the Supreme Court to resolve disagreements in the lower courts of the kind that erupted Friday in two dueling federal cases from Texas and the state of Washington about mifepristone.

As a matter of law, the case should be easy for the court, and it should quickly make clear that there is no legal basis for the Texas judge’s ruling to overturn the Food and Drug Administration’s decision — 23 years ago — allowing mifepristone to be used for abortions.

But with a majority of the justices openly hostile to abortion rights, will the court follow the law?

The first decision released Friday came from Judge Matthew Kacsmaryk, who sits in the Northern District of Texas and who was appointed to the bench by President Trump. His job before being appointed 2019 was as a lawyer for the First Liberty Institute, a Christian conservative litigation operation that opposes women’s reproductive freedom.

The case was brought by the Alliance for Hippocratic Freedom, an anti-abortion group of doctors that reportedly opened an office in Amarillo, Texas, precisely in order to get its legal challenge before Judge Kacsmaryk, who hears all federal cases filed there. Judge Kacsmaryk ruled that 23 years ago, the FDA incorrectly approved the use of mifepristone. In a stunning opinion, he repeatedly referred to the embryo as the “unborn human” and the “unborn child,” wrote of the legal rights of embryos, and substituted his view of the medical evidence for that of the FDA.

Also on Friday, federal Judge Thomas Owen Rice of the Eastern District of Washington, appointed to the bench in 2016 by President Obama, came to the opposite conclusion, holding that the FDA’s ruling was proper and ordering the agency to do nothing to disapprove the drug.

The decisions create enormous uncertainty, particularly for pharmacies, about how to comply with competing federal court rulings. One ruling purports to stay the FDA’s approval of the drug, while the other blocks the FDA from restricting the drug’s use in 17 states that had filed suit in his court. 

The issue is of huge importance because over half of all abortions in the United States are medically induced using mifepristone.

The Justice Department has already filed an appeal of the decision in the U.S. Court of Appeals for the Fifth Circuit, and hopefully it will quickly stay Judge Kacsmaryk’s ruling. But given the conflicting decisions, there is a need for quick resolution by the nation’s highest court.

Judge Kacsmaryk’s opinion does nothing to hide that it is an anti-abortion screed; it is wrong on the law in so many ways. Never before has any court overturned an FDA decision to allow distribution of a drug, let alone a decision made 23 years earlier.

In order for a federal court to hear a case, the plaintiffs must have standing to sue, which means that they must show that they are personally injured. The judge said that the conservative organization could sue on behalf of doctors because “adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications.” No evidence supports that preposterous premise as a basis for standing. Twenty-three years of experience have shown that this is fanciful and that the evidence is overwhelming that medically induced abortions are safer than surgical abortions or childbirth — even safer than taking Tylenol.

Judge Kacsmaryk also wrote that “[m]embers of plaintiff medical associations oppose being forced to end the life of a human being in the womb for no medical reason.” But no doctor is “forced” to perform abortions or prescribe medication that offends personal beliefs.

The Supreme Court can easily reverse Judge Kacsmaryk by holding that he erred in allowing the plaintiffs to sue and if it reaches the merits, that he was wrong in substituting his medical judgment for that made by the FDA 23 years ago.

It should be easy to predict this outcome, but will it happen with a majority of the justices staunchly opposed to abortion rights?

This is also a court that has expressed a desire to limit the authority of federal agencies.

There is every reason to worry that the conservative justices, in their desire to restrict access to abortions, would uphold Judge Kacsmaryk’s decision.

The Supreme Court has its lowest approval ratings in history. Now, as much as ever, it is crucial that the justices make clear that they are not partisan hacks who just follow the Republican platform, but instead are committed jurists who follow the law. The recent decisions concerning mifepristone will give them just that opportunity.

Erwin Chemerinsky is dean and a professor at the University of California, Berkeley School of Law.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.